AM (Jamaica) v Secretary of State for the Home Department

This is a renewed oral application for permission to appeal in a second appeal case. Accordingly the test I have to apply is that I should not give permission unless I consider that the appeal would raise an important point of principle or practice or there is some other compelling reason for the Court of Appeal to hear it. Treacy LJ refused permission on the papers as he did not consider the second appeal test was met.

On the renewed application today Mr Chirico for the appellant pursues three grounds of appeal. The first (ground 2 as listed in the notice of appeal) is that he maintains that the First-tier Tribunal, although it identified the best interests of certain children with whom the appellant was involved, did not treat those best interests as a primary consideration as required by cases such as ZH (Tanzania) [2011] UKSC 4.

In my view this does not give rise to an important point of principle or practice. The relevant legal principles are very well established indeed and it is not necessary for this case to proceed to appeal for them to be looked again. Mr Chirico’s submission was that there is an irreducible formal requirement that a tribunal refer to the relevant primary consideration test on the face of its decision. However, I do not consider there is a real prospect of success in an appeal arguing along those lines. In my view it is clear that the relevant principles which govern interpretation of reasons given by the First-tier Tribunal are the same general reasons that apply to consideration of any tribunal decision. It cannot be said that there is an irreducible minimum. What is required is that a superior tribunal or court look to see if there are sufficient indications that a tribunal has misdirected itself. That is precisely what the Upper Tribunal did in this case (see in particular paragraphs 11 to 12). Its conclusion was that the FTT had not misdirected itself, on a proper interpretation of its reasons in the round. As I have indicated, I do not consider that this ground of appeal gives rise to an important point of principle of practice.

Next, Mr Chirico relies on ground 3 in the notice of appeal. He submits that it is arguable that the FTT gave improper weight to the fact of the offending by the appellant, who had been convicted of robbery in 2010 and sentenced to four years’ imprisonment. Against this is a background of improvement where Mr Chirico submits the appellant has become rehabilitated.

The Upper Tribunal dealt with this ground at paragraphs 13 to 16 of its decision. It noted that the FTT gave credit to the appellant for the fact that he was now assessed to pose a low risk of reoffending and that he was continuing his rehabilitation, but it also noted that as recorded in paragraph 27 of its determination the FTT had observed that “Mr Chirico quite correctly accepted there is a strong public interest in removing foreign citizens convicted of serious offences even where there is little or no evidence of future risk to the general public”.

That position, namely that a Tribunal is entitled in a case like this to take into account a background of serious offending by a person who faces deportation when weighing the position under Article 8 is in my view uncontroversial and well-established, and will remain so even if the precise weight to be attached to that factor is to be the subject of examination by the Supreme Court in the case of HA (Iraq) [2014] EWCA Civ 1304, which I am informed has been argued recently, and whatever any realistically likely outcome might be in that case.

Accordingly, so far as ground 3 is concerned, the case is really one of an application of acknowledged relevant factors in the context of the particular facts of the case. Again, I do not consider that this gives rise to an important point of principle or practice which is likely to be material in the circumstances of the present case, in the sense that there would be a wider general public interest in exploration of the operation of the weight to be given to the fact of serious offending by an immigrant through the grant of permission to appeal to this court in this particular case. It is unnecessary for this court to give permission to appeal simply for the purposes of examining the operation of the law in this area in general terms. That is going to be a matter for exploration by the Supreme Court and it is unnecessary for this court to give permission to appeal simply to explore that aspect of the law.

The third ground relied upon by Mr Chirico is ground 4 in the notice of appeal. This again is very much related to the question of the weight which the Tribunal was entitled to attach to the fact of the serious offending by the appellant in this case when weighing matters for the purposes of Article 8. For reasons similar to those in relation to the second matter argued today, ground 3 in the notice of appeal, I consider that this is essentially a matter of application to the particular facts of this case of acknowledged relevant considerations by the First-tier Tribunal. I do not consider that this is a ground which gives rise to an important point of principle or practice.

Standing back from those matters, I have considered whether there is some other compelling reason for this court to grant permission to appeal, particularly against the possibility that the Supreme Court may effect some adjustment in the weight to be given to the fact of serious offending in the past in the course of its consideration of the appeal in HA (Iraq). It does not appear to me from the Statement of Facts and Issues in that case that there is any real prospect that the Supreme Court will say that significant weight cannot be given to the fact of serious offending by a foreign person while in the United Kingdom when conducting an Article 8 balancing exercise. That being so, I do not consider, looking at the particular facts of this case, taking into account the serious offending by the appellant and weighing it against the evidence of his relationship with his mother, his nephew, his sister and his current partner/girlfriend’s son, that this is a case where it can be said that there would be any apparent injustice if the appellant were removed. The evidence given by the appellant in relation to the three children I have mentioned does not suggest that he occupies a full parental role in relation to any of them. In my view, the First-tier Tribunal gave proper weight to their interests when taking them into account and balancing them against the seriousness of the appellant’s offending.

Therefore, neither on the ‘important point of principle or practice’ limb of the second appeals test nor on the ‘other compelling reason’ limb of that test do I consider that it is appropriate to grant permission to appeal in this case.

Accordingly, in agreement with Treacy LJ, I reject this application.